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VIII. France

Article 689 of the French Code of Criminal Procedure²³⁷ provides for universal jurisdiction over offenses committed outside of France when an international convention gives jurisdiction to French courts to deal with this offense.²³⁸ Article 689.1 sets out the conditions for an exercise of universal jurisdiction of French courts, and subsequent paragraphs (689.2-689.9) list the international conventions that provide French courts with universal jurisdiction. As far as international crimes are concerned, the only convention referred to is the Convention against Torture, in article 689.2. No provisions exist for grave breaches of the Geneva Conventions²³⁹ or other war crimes, and French courts have held that the Conventions were not directly applicable in national law. Accordingly grave breaches or war crimes are not subject to universal jurisdiction under French law.²⁴⁰ French courts can therefore only exercise universal jurisdiction over torture.²⁴¹

By virtue of Law No. 95-1 of January 2, 1995,²⁴² and Law No. 96-432 of May 22, 1996,²⁴³ which implemented Security Council Resolutions 827 and 955 setting up the ad-hoc tribunals for the former Yugoslavia and Rwanda, French courts can exercise ad hoc universal jurisdiction over war crimes, genocide and crimes against humanity, if committed in the former Yugoslavia, Rwanda or by Rwandan citizens in neighbouring countries.²⁴⁴

Since 2001, one person has been convicted by a French court on the basis of universal jurisdiction. On July 1, 2005, Ely Ould Dah, a Mauritanian officer was sentenced in absentia to ten years in prison for torturing black African members of the military in 1990 and 1991.²⁴⁵ Other investigations have been discontinued for reasons outlined further below, while some are still ongoing, including that of Rwandan priest Wenceslas Munyeshyaka, the “Disappeared of the Beach” in Congo Brazzaville, and Callixte Mbarushimana for his alleged participation in the 1994 Rwandan genocide.

A. Jurisdictional Challenges

1.   Presence

With respect to crimes that may be prosecuted under article 689 of the Criminal Procedure Code and to crimes committed in the former Yugoslavia and Rwanda, presence of the suspect on French territory must be established before a criminal investigation can be launched.²⁴⁶ Where a complaint has been filed directly with the investigative judge, the private party filing the complaint has to include some indication that the alleged perpetrator is present in France. In the case of Wenceslas Munyeshyaka, for instance, victims included in their complaint an article published in a local French newspaper that mentioned his name in connection with a local event.²⁴⁷ The judicial authorities can order an investigation to corroborate the allegations that the person is present on French territory.

Presence is only required for an investigation to commence, and can proceed even if the suspect leaves the territory in the course of the investigation. Trials in absentia in universal jurisdiction cases are possible, as in the Ely Ould Dah case, already mentioned.²⁴⁸ In 1999, while Ely Ould Dah was staying in France, two French organizations filed a complaint on behalf of two victims against him on charges of torture. The lieutenant was first imprisoned and later placed under judicial supervision. In 2000 he managed to escape to Mauritania. The investigating judge continued with the proceedings and ordered a trial before the Cour d’Assises. Both the Court of Appeal and the Cour de Cassation confirmed the decision of the investigating judge to proceed with the case, even though the accused remained in Mauritania.

2.   Immunities

Where an investigative judge receives a case involving potential immunity issues, the case is usually referred to the Ministry of Foreign Affairs, which has a special unit dealing with such issues. The case is then referred back to the investigative judge in charge of the case with a determination to proceed or not proceed.²⁴⁹ In the Disappeared of the Beach case, a complaint filed by an NGO against Jean-François Ndengue, chief of the National Police of the Republic of Congo (Brazzaville) for crimes against humanity, enforced disappearances and torture led to the indictment and preliminary arrest of Ndengue on April 1, 2004 while on a private visit to France. The public prosecutor appealed against this decision to the Court of Appeal, which held that Ndengue was entitled to immunity. He was released and left France immediately. The public prosecutor denounced the decision of the investigative judge placing Ndengue in detention as arbitrary, and the French Foreign Ministry justified the decision to release him by the fact that Ndengue was holding a valid diplomatic passport and that he was on an official visit to France.²⁵⁰

A warrant for the arrest of Zimbabwean President Robert Mugabe, accused of torture, was issued by a Paris magistrate on February 17, 2003, when Mugabe was visiting Paris for a Franco-African summit. A French court ruled, however, that Mugabe holds immunity from prosecution as a sitting head of state.²⁵¹ In the Nezzarcase, a complaint was filed against a former Algerian defense minister and member of the High Committee of State, Khaled Nezzar, for torture in Algeria. In response to a press inquiry, the French Ministry of Foreign Affairs said that General Nezzar was on an official mission in France (although he reportedly had no meetings planned with French officials) and the Algerian embassy stated that he was carrying a diplomatic passport. The prosecutor promptly opened a preliminary investigation the same afternoon, but the suspect left a few hours later on a private aircraft.

In the case against Tunisian vice-consul Khaled Ben Said, accused of torture by a Tunisian national in 2001, the suspect attempted to invoke immunity in connection with his diplomatic status after being identified and located by the French police at the Tunisian Consulate in Strasbourg.²⁵² However, a French prosecutor did not recognize this claim for immunity and, after a preliminary investigation into the alleged acts, issued proceedings against Ben Said. When the accused fled France, the examining judge issued an international arrest warrant on February 15, 2002.²⁵³

With respect to allegations that the complaints in the Ould Dah case fell under a Mauritanian amnesty law, the judge took the view that “whatever the legitimacy of an amnesty in the context of a local policy of reconciliation, this law has effect only in the territory of the State concerned and is not opposable to third countries in the context of the application of international law”.²⁵⁴ The court stated that recognizing the applicability of a foreign amnesty law in France would be tantamount to a violation by the French national authorities of their international obligations and to negating the very principle and purpose of universal jurisdiction. The magistrate therefore ruled that jurisdiction applied, and issued an indictment against the accused.²⁵⁵

3.   Limitation

Felonies, including the crime of torture, are subject to a limitation period of ten years, starting from the day of the commission of the crime, if during this period no investigative step was taken.²⁵⁶ Although not yet subject to universal jurisdiction, it is worth mentioning that crimes against humanity and genocide—as contained in the Criminal Code since 1994—are not subject to statutes of limitation.²⁵⁷

4.   Subsidiarity

While the ICTR and ICTY would enjoy primary jurisdiction if they requested it, French courts can exercise jurisdiction concurrently with other jurisdictions. Authorities proceed on the basis that if the other jurisdiction succeeds with a prosecution, they will stop their own investigation, in accordance with the principle of no bis in idem.  According to French officials, this has the advantage of keeping their own proceedings ongoing in case the proceedings in the territorial state do not lead anywhere.²⁵⁸

B. Practical Arrangements for the Exercise of Universal Jurisdiction in France

1.   Special departments in charge of the investigation and prosecution of international crimes

There is no special police unit that deals exclusively with international crimes in France. The investigative judge or prosecutor in the judicial district where the alleged perpetrator is found or where the complaint is brought has competence to prosecute international crimes cases (territorial competence). In Paris, a number of “special units” have been created to investigate and prosecute terrorism, organized crime, crimes against children and public health-related crimes, among others. International crimes are dealt with by the investigative judges in the “general unit,” however, along with ordinary crimes. As no such unit has been created in relation to international crimes, individual investigative judges are seized randomly within their judicial district and are left to manage such cases on their own, without either expert assistance or additional administrative support.  As this prevents investigative judges from accumulating experience and expertise, the Cour de Cassation in 2001 decided that it was in the interests of the administration of justice to group all cases concerning crimes committed in Rwanda within the jurisdiction of the Paris judicial authorities.²⁵⁹ However, even within the Paris jurisdiction, no specific competence for these crimes exists and complaints are distributed among the investigative judges of the general unit.²⁶⁰

2.   Notification

Universal jurisdiction cases that were investigated and/or prosecuted were all initiated by private parties relying on the parties civiles provisions of the French Criminal Procedure Code.²⁶¹ All complainants in these cases were assisted by NGOs.²⁶² No special department within the immigration authorities exists to refer cases of alleged perpetrators of international crimes to investigative judges.²⁶³  

3.   Decision to investigate and prosecute

The investigating judge is in charge of the investigation and can require the assistance of the “judicial police.”²⁶⁴ The investigative judge can be seized of a case by the prosecutor, who has a degree of discretion as to whether to refer a complaint to the investigative judge.²⁶⁵ Should a victim or another third party relying on the parties civiles provisiondecide to file a complaint directly with the investigative judge, an investigation must be initiated taking into account the submissions of the district prosecutor.²⁶⁶ The complaint is sent to the district prosecutor for the latter’s submissions. An investigation can only be refused when the investigative judge is convinced by a submission of the prosecution “that the facts of the case cannot lead to a lawful prosecution for reasons relating to the right to prosecute.”²⁶⁷ If the investigative judge does not investigate a complaint due to the submission of the prosecution, the complainants can appeal that decision to the Chamber of the Cour d’Assises, while the prosecutor has the same right should the investigative judge disregard his submission against opening an investigation.²⁶⁸ Victims thus have direct access to justice, and the first conviction based on universal jurisdiction in France was based on the initiative of the parties civiles in the Ely Ould Dah case. An appeal directly against a prosecutor’s decision not to investigate is not possible.

The current draft of the legislation implementing the Rome Statute of the International Criminal Court proposes to abrogate the right of private parties to lodge complaints regarding crimes against humanity and war crimes with the investigative judge, and grants this right exclusively to the prosecution. The decision to prosecute is based on a recommendation of the investigative judge, who, once the investigation is complete, takes into account the evidence at his or her disposal. The chamber of the Cour d’Assises then decides on the recommendation of the investigative judge.²⁶⁹

4.   Investigation

Once the investigative judge is seized with a case and the prosecutor’s submissions have been received, evidence from open sources and available in France is sought by the investigative judge and the judicial police. This proved to be sufficient in the Ely Ould Dah case, where the conviction in absentia was secured on the basis of witnesses and other evidence available in France.²⁷⁰ To date, no investigation based on universal jurisdiction has been carried out by French officials in another country. This is due to a variety of factors depending on the cases, including lack of cooperation by the authorities of the territorial state, or lack of resources available to the judicial police.²⁷¹ 

C. Cooperation

1.    International cooperation

No use has yet been made of the EU Network or the Interpol working group on International Crimes to exchange experiences gained by other national authorities when investigating abroad. When French officials sent a letter rogatory to their counterparts in Rwanda to obtain permission to investigate as well as assistance from local authorities, it took three years to receive a reply, which was negative. Consequently, no investigation could be carried out and the case is still under investigation. The procedure to establish cooperation is complex and requires follow-up from those in charge of transmitting the request for cooperation. While a contact point for international cooperation in criminal matters exists within the Ministry of Justice, there are no standard procedures in place on how to handle such requests.

D. Role and Rights of Victims and Witnesses

1.   Victims—Compensation and legal representation

Civil claims can be brought as part of criminal prosecutions, including those based on universal jurisdiction. Article 3 of the Criminal Procedure Code provides that “the civil action may be exercised at the same time as the public prosecution and before the same court. It is admissible for any cause of damage, whether material, bodily or moral, which ensues from the actions prosecuted.” According to article 2, civil litigation can be pursued by anyone for damages suffered as a result of crimes under French law. Victims can claim compensation from the alleged perpetrator of the crimes, or, in another procedure, from the “State Compensation Scheme,” which is in place for, inter alia, serious crimes.²⁷² Victims (bearing French nationality or not) wishing to exercise their right as parties civiles and/or as civil claimants are entitled to legal  representation, the costs of which are covered by legal aid where they cannot provide for it themselves.²⁷³

2.   Witnesses

While the investigative judge can taken written statements from witnesses, French court proceedings are conducted on the principle of orality. Therefore, the key witnesses will be heard by the trial judge during the trial. It is not permitted under French procedural law to videotape witness statements and to rely on these during trial. Instead, witnesses could testify via video-link.²⁷⁴ Certain specific provisions exist in French law concerning the protection of witnesses in cases of grave crimes and where there is a serious risk to the witnesses’ safety providing, for instance, witnesses with the possibility to give testimony anonymously.²⁷⁵ Further, the intimidation or threatening of witnesses is considered an aggravating circumstance and will lead to a more severe punishment of the offender.²⁷⁶

E. Fair Investigation and Trial

Investigative judges are obliged to investigate inculpatory and exculpatory evidence.²⁷⁷ Representation of the defendant is guaranteed by providing legal aid where the accused is not able to pay for it.²⁷⁸  The defense lawyer must be able to challenge all evidence relied upon by the prosecution during trial, as the trial judge must only reach a decision based on the evidence which has been laid before the judge during trial (“principle of contradiction”). Anyone convicted in absentia can file an application with the court to have the enforcement of the judgment set aside.²⁷⁹